Trump v. Slaughter
Whether the President has unrestricted constitutional authority to remove members of multi-member independent agencies like the Federal Trade Commission, and whether Humphrey's Executor v. United States should be overruled.
Background & Facts
President Trump fired FTC Commissioner Rebecca Kelly Slaughter without cause, in apparent violation of the FTC Act, which allows removal of commissioners only for 'inefficiency, neglect of duty, or malfeasance in office.' Slaughter challenged her removal, and the district court ruled in her favor, finding the firing violated the statute as interpreted by the Supreme Court in Humphrey's Executor v. United States (1935), which unanimously upheld the FTC's for-cause removal protection.
The government argues that Humphrey's Executor was wrongly decided and should be overruled because the Constitution's Vesting Clause grants all executive power to the President, which necessarily includes the power to remove any executive officer at will. They contend that the FTC exercises quintessentially executive powers — rulemaking, adjudication, investigation, and civil enforcement — and that insulating its commissioners from presidential removal violates the separation of powers.
The respondents argue that multi-member commissions with removal protections have existed since the founding era, that Congress and Presidents have jointly created more than two dozen such independent agencies since 1887, and that Humphrey's Executor has been settled law for 90 years. They contend the government has no principled limiting theory and that overruling Humphrey's would put at risk the entire structure of independent agencies across the federal government.
Why This Case Matters
This case could fundamentally reshape the structure of the federal government. If the Court overrules Humphrey's Executor, the President would gain at-will removal power over the heads of more than two dozen independent agencies — including the FCC, SEC, NLRB, Nuclear Regulatory Commission, and potentially the Federal Reserve — ending nearly a century of independence for these bodies. The decision would affect how Congress can structure agencies going forward and could call into question removal protections for inferior officers and civil servants.
The case also raises profound questions about the balance of power between Congress and the President. Congress has long relied on Humphrey's Executor to create agencies insulated from direct presidential control, believing that nonpartisan expertise and independence serve the public interest. Overruling it would concentrate enormous regulatory, rulemaking, and adjudicative power under direct presidential authority, which supporters call democratic accountability and critics call unchecked executive power.
The Arguments
The Constitution's Vesting Clause grants all executive power to the President, which includes an unrestricted power to remove executive officers. Humphrey's Executor was grievously wrong when decided, its reasoning has been repudiated by subsequent cases, and it should be overruled to restore democratic accountability over agencies wielding enormous governmental power.
- Nine Supreme Court decisions from Ex Parte Hennen (1839) through Trump v. United States (2024) confirm the President's exclusive and illimitable removal power
- Humphrey's Executor's rationale that agencies exercise quasi-legislative and quasi-judicial powers outside executive power has been unanimously rejected by the Court
- Independent agencies create an unconstitutional power vacuum where officers exercise enormous authority without answering to the voters through the President
- Overruling Humphrey's would not destroy agencies but merely sever the removal restriction, restoring political accountability as done in Free Enterprise Fund and Seila Law
Key Exchanges with Justices
Justice Kagan
“If your fundamental proposition is that the Vesting Clause gives all executive power to the President, once you're down this road, how do you stop? What about inferior officers, employees, and civil service protections?”
Revealed the government's difficulty in articulating where its theory stops, as General Sauer could only say they hadn't challenged those categories yet rather than explain why they wouldn't.
Justice Barrett
“Is there any reason we have to ground the removal power specifically in the Vesting Clause, rather than the Take Care Clause or Appointments Clause, given the hard questions about limiting principles?”
Suggested a potential middle-ground approach that could limit the reach of the decision by not fully endorsing the broadest unitary executive theory.
Justice Kavanaugh
“Why did no President challenge this structure from 1935 to 2025, given that many Presidents have had strong views of Article II?”
General Sauer acknowledged Presidents may have had political incentives to outsource tough decisions but argued one President cannot bind successors on constitutional structure.
Multi-member commissions with for-cause removal protections have been part of American governance since the founding era, upheld unanimously by the Court in Humphrey's Executor, and relied upon by Congress in creating more than two dozen independent agencies. Petitioners' theory has no principled stopping point and would cause real-world chaos by putting the Federal Reserve, Article I courts, and all independent agencies at risk.
- No case in over 200 years has ever struck down a single layer of for-cause removal protection for principal officers on a multi-member commission
- The FTC's current powers are essentially the same as when Humphrey's Executor was decided, so there is no changed circumstance justifying overruling
- Petitioners cannot reconcile their theory with their own concessions about the Federal Reserve and Article I courts, proving the theory lacks a principled limit
- The political branches have successfully managed the balance between presidential supervision and agency independence through accommodation for over a century
Key Exchanges with Justices
Justice Gorsuch
“Why isn't civil enforcement just as conclusive and preclusive as criminal prosecution? It's a conclusive decision about enforcement power of the federal government against individuals.”
Exposed a significant weakness in respondent's theory, as Agarwal struggled to explain why civil enforcement doesn't implicate the same presidential control concerns as criminal enforcement.
Justice Alito
“You keep saying these hypotheticals haven't happened, but I want to understand the limits of your principle. Could Congress convert cabinet departments into multi-member commissions with removal protection?”
Revealed that respondent's limiting principles were somewhat vague, relying heavily on the conclusive-and-preclusive standard and historical tradition rather than bright-line rules.
Chief Justice Roberts
“Humphrey's Executor addressed an agency with very little executive power and is a dried husk of what people thought it was. Putting Humphrey's aside, what's your next good case?”
Suggested the Chief Justice may view Humphrey's as significantly weakened, forcing respondent to rely on Wiener and Free Enterprise Fund as alternative authorities.
Precedent Cases Cited
Humphrey's Executor v. United States
295 U.S. 602
The central precedent at issue: petitioners seek to overrule it while respondents defend it as settled law upholding for-cause removal protections for FTC commissioners.
Seila Law LLC v. Consumer Financial Protection Bureau
Both sides relied heavily on this case: petitioners cited its reasoning about executive power and removal authority; respondents cited its distinction between single-director and multi-member agencies.
Myers v. United States
272 U.S. 52
Petitioners cited it as establishing the President's broad removal power; respondents noted that four Myers justices later joined the unanimous Humphrey's Executor decision.
Free Enterprise Fund v. Public Company Accounting Oversight Board
Cited for its holding that dual layers of for-cause removal were unconstitutional, its severability approach of excising only the removal restriction, and its statement about not deciding the status of lesser functionaries.
Trump v. United States
Petitioners cited it for holding the President's removal power is conclusive and preclusive; respondents cited its recognition that criminal investigations and prosecutions are constitutionally committed to the President.
Wiener v. United States
357 U.S. 349
Cited as extending Humphrey's Executor's philosophy to the War Claims Commission; petitioners urged overruling it while respondents defended it as further support for removal protections.
Morrison v. Olson
487 U.S. 654
Petitioners argued it repudiated Humphrey's Executor's quasi-legislative/quasi-judicial reasoning; cited as part of the evolving and unstable framework around removal restrictions.
INS v. Chadha
462 U.S. 919
Cited in discussion of the legislative veto as a former congressional check on independent agencies, and as an example of the Court striking down a longstanding practice on separation-of-powers grounds.
Legal Terminology
Analysis & Opinions
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